We’re just days away from a new U.S. Supreme Court Term. With some notable exceptions, most folks pay attention to Supreme Court decisions not because of who wins or loses those particular cases, but because of what those decisions mean for the law going forward.

So which Supreme Court decisions have been cited the most? The top-ranked cases, it turns out, are right in your 1L civil procedure syllabus. My article that came out this spring (The Rise and Fall of Plausibility Pleading?) includes some data on this from the Shepard’s citation service. In terms of citations by federal courts, the Top-5 are all civil procedure cases: the 1986 summary judgment trilogy (#1, #2, #5) plus Twombly (#3) and Iqbal (#4). Here’s the Top-20:

Maggie Gardner has posted on SSRN a draft of her article, Parochial Procedure, which will be published in the Stanford Law Review. Here’s the abstract:

The federal courts are often accused of being too parochial, favoring U.S. parties over foreigners and U.S. law over relevant foreign or international law. According to what this Article terms the “parochial critique,” the courts’ U.S.-centrism generates unnecessary friction with allies, regulatory conflict, and access-to-justice gaps. This parochialism is assumed to reflect the preferences of individual judges: persuade judges to like international law and transnational cases better, the standard story goes, and the courts will reach more cosmopolitan results.

This Article challenges that assumption. It argues instead that parochial doctrines can develop even in the absence of parochial judges. Our sometimes parochial procedure may be the unintended result of decisionmaking pressures that mount over time within poorly designed doctrines: it reflects not so much the personal views of individual judges, but the limits of institutional capacity, the realities of behavioral decisionmaking, and the path dependence of the common law. The Article shows how open-ended decisionmaking in the midst of complexity encourages the use of heuristics that tend to emphasize the local, the familiar, and the concrete. These decisionmaking shortcuts, by disfavoring the foreign, put a parochial thumb on the scale — but that tilt is not limited to individual cases. Rather, it is locked in and amplified through the accumulation of precedent, as later judges rely on existing decisions to resolve new cases. Over time, even judges with positive conceptions of international law and transnational order will find themselves, in applying these doctrines, consistently favoring U.S. litigants over foreigners and U.S. law over foreign or international law.

To illustrate, the Article traces the evolution of four procedural doctrines: discovery of foreign evidence, forum non conveniens, service of process abroad, and the recognition of foreign judgments. The decisionmaking pressures outlined here can explain why the first two (framed as open-ended standards) are often criticized as parochial while the latter two (framed in more rule-like terms) are not. And if that account is at least plausible, it supports the primary claim of the Article: that the occasional parochialism of our courts does not necessarily reflect the personal prejudices of our judges. If so, then avoiding the costs of parochialism will require structural, not just personal, solutions.

Commercial trusts are one of the United States’ most important types of business organizations, holding trillions of dollars of assets and operating nationally and internationally as a “mirror image” of the corporation. However, commercial trusts remain underappreciated and undertheorized in comparison to corporations, often as a result of the mistaken perception that commercial trusts are analogous to traditional intergenerational trusts or that corporations reflect the primary or paradigmatic form of business association.

The treatment of commercial trusts reached its nadir in early 2016, when the U.S. Supreme Court held in Americold Realty Trust v. ConAgra Foods, Inc. that the citizenship of a commercial trust should be equated with that of its shareholder-beneficiaries for purposes of diversity jurisdiction. Unfortunately, the sheer number of shareholder-beneficiaries in most commercial trusts (often amounting to hundreds if not thousands of individuals) typically precludes the parties’ ability to establish complete diversity and thus eliminates the possibility of federal jurisdiction over most commercial trust disputes. As a result, virtually all commercial trust disputes will now be heard in state court, despite their complexity, their impact on matters of national public policy and their effect on the domestic and global economies.

Americold will also result in differential treatment of commercial trusts and corporations for purposes of federal jurisdiction, even though courts and commentators have long recognized the functional equivalence of the two types of business associations. Furthermore, as this research shows, there is no theoretical justification for this type of unequal treatment.

This Article therefore suggests, as a normative proposition, that Congress override Americold and provide commercial trusts with access to federal courts in a manner similar to that enjoyed by corporations. This recommendation is the result of a rigorous interdisciplinary analysis of both the jurisprudential and practical problems created by Americold as a matter of trust law, procedural law and the law of incorporated and unincorporated business associations. The Article identifies two possible Congressional responses to Americold, one involving reliance on minimal diversity, as in cases falling under 28 U.S.C. §§1332(d) and 1369, and the other involving a statutory definition of the citizenship of commercial trusts similar to that used for corporations under 28 U.S.C. §1332(c). In so doing, this Article hopes to place commercial trusts and corporations on an equal footing and avoid the numerous negative externalities generated by the Supreme Court’s decision in Americold.

Pennoyer v. Neff has a bad rap. As an original matter, Pennoyer is legally correct. Compared to current doctrine, it offers a more coherent and attractive way to think about personal jurisdiction and interstate relations generally.

To wit: The Constitution imposes no direct limits on personal jurisdiction. Jurisdiction isn't a matter of federal law, but of general law--that unwritten law, including much of the English common law and the customary law of nations, that formed the basis of the American legal system. Founding-era states were free to override that law and to exercise more expansive jurisdiction. But if they did, their judgments wouldn't be recognized elsewhere, in other states or in federal courts--any more than if they'd tried to redraw their borders.

As Pennoyer saw, the Fourteenth Amendment changed things by enabling direct federal review of state judgments, rather than making parties wait to challenge them at the recognition stage. It created a federal question of what had been a general one: whether a judgment was issued with jurisdiction, full stop, such that the deprivation of property or liberty it ordered would be done with due process of law.

Reviving Pennoyer would make modern doctrine make more sense. Courts applying the Due Process Clause should avoid pitched battles between "sovereignty" and "liberty," looking instead to current conventions of general and international law. International law may not be much, but it's something: the conventional settlement of the problems of political authority that personal jurisdiction so obviously raises.

Pennoyer's reasoning can be right without International Shoe's outcome being wrong. International law and American practice might be different now than in 1878, or even in 1945. But if not, or if the rules need improvement anyway, Congress has power to improve them--providing federal rules to govern a federal system.

Carlos Vazquez has posted on SSRN Out-Beale-Ing Beale, which was initially published in the American Society of International Law’s AJIL Unbound. Here’s the abstract:

In response to the 1991 Supreme Court decision resuscitating the presumption against extraterritoriality [hereinafter “PAE” or “presumption”], EEOC v. Arabian American Oil Co. (Aramco), Larry Kramer described the presumption as an anachronism — a throwback to the strict territorialist approach to choice of law that prevailed before the mid-Twentieth Century but has been mostly abandoned since then. The title of his scathing article, Vestiges of Beale, referred to Joseph Beale, the Harvard Law professor and reporter of the First Restatement of Conflict of Laws, whose since-discredited theories underlay that Restatement’s approach to choice of law. In the cases since Aramco, the Court has strengthened and expanded the presumption. With its decision in RJR Nabisco v. European Community, it is fair to say, the Court has out-Beale’d Beale.

The AALS Section on Federal Courts is pleased to announce the fifth annual award for the best article on the law of federal jurisdiction by a full-time, untenured faculty member at an AALS member or affiliate school—and to solicit nominations (including self-nominations) for the prize to be awarded at the 2017 AALS Annual Meeting in San Francisco, CA.

The purpose of the award program is to recognize outstanding scholarship in the field of federal courts by untenured faculty members. To that end, eligible articles are those specifically in the field of Federal Courts that were published by a recognized journal during the twelve-month period ending on September 1, 2016 (date of actual publication determines eligibility). Eligible authors are those who, at the close of nominations (i.e., as of September 15, 2016), are untenured, full-time faculty members at AALS member or affiliate schools, and have not previously won the award.

Nominations (and questions about the award) should be directed to Prof. Bradford Clark at George Washington University Law School (bclark@law.gwu.edu). Without exception, all nominations must be received by 11:59 p.m. (EDT) on September 15, 2016. Nominations will be reviewed by a prize committee comprised of Professors Curtis Bradley (Duke), Bradford Clark (George Washington), Tara Leigh Grove (William & Mary), Gillian Metzger (Columbia), and Caleb Nelson (Virginia), with the result announced at the Federal Courts section program at the 2017 AALS Annual Meeting.

This is a draft of a forthcoming work in progress. Class actions have long been contracting as procedural vehicles in mass tort litigation. At the same time, parens patriae actions brought by state attorneys general for injuries to their state’s citizenry have been expanding. This form of public dispute has emerged as a full-fledged alternative form of aggregate litigation in mass torts. The use of this public alternative is already widespread in consumer, antitrust, environmental, and health law cases.

Despite the widespread use of parens patriae litigation by states, the source of the power to sue in this way is vague and ill-defined. Courts have struggled to articulate and explain the source and scope of the state’s power to bring mass tort suits for injuries to the state’s populace, sometimes reaching seemingly contradictory results.

Although the use of parens patriae power in mass tort litigation has been both praised and criticized by complex litigation scholars, commentators have largely overlooked the historical and constitutional functional role of parens patriae litigation. This Article fills that gap by examining the states’ parens patriae power from the Framing to the modern era excavate the doctrine’s historical roots and purpose in our constitutional structure. It debunks the false history used by modern courts to justify the doctrine’s existence, suggesting courts have relied on a faulty foundation to expand the doctrine. In so doing, this Article makes space for a new foundation for parens patriae litigation rooted in the historic police powers of the states.

The Article argues that the historic police powers of the states are inextricable from parens patriae power. Modern mass tort litigation brought by states is thus deeply connected to federalism in a way that traditional class actions are not.

In this Article we use game theory to argue that perceptions of widespread corruption in the judicial processes in developing countries create ex ante incentives to act corruptly. It is rational (though not moral) to preemptively act corruptly when litigating in the courts of many developing nations. The upshot of this analysis is to highlight that, contrary to judicial narratives in individual cases — such as the (in)famous Chevron–Ecuador dispute used herein as an illustration — the problem of corruption in transnational litigation is structural and as such calls for structural solutions. The article offers one such solution: the establishment of an international court of civil justice.

Scott Dodson has posted on SSRN a draft of his article, Jurisdiction and Its Effects, which is forthcoming in the Georgetown Law Journal. Here’s the abstract:

Jurisdiction is experiencing an identity crisis. The Court has given jurisdiction three different identities: jurisdiction as power, jurisdiction as defined effects, and jurisdiction as positive law. These identities are at war with each other, and each is unsustainable on its own. The result has been a breakdown in the application of the basic question of what is jurisdictional and what is not.

I aim to rehabilitate jurisdiction. Jurisdiction is none of the three identities above. Rather, jurisdiction determines forum in a multi-forum system. It seeks not to limit a particular court in isolation but instead to define boundaries and relationships among forums. Because it speaks to relationships generally, jurisdiction exhibits neither unique nor immutable effects. Instead, positive law can prescribe whatever effects - including waivability, forfeitability, and even equitable discretion - best fit a particular jurisdictional rule.

This identity for jurisdiction resolves tensions across a wide range of doctrines. For example, it reconciles personal jurisdiction and original subject-matter jurisdiction as jurisdictional kin, a pair long estranged because of personal jurisdiction’s waivability. Other categorizations are more surprising. For example, venue, abstention, and even the Federal Arbitration Act are all jurisdictional because they select among forums, while Article III standing is non-jurisdictional because it does not. These categorizations are unconventional, but they ultimately produce a more coherent, consistent, and useful jurisdictional identity.

Aggregate litigation, including class-actions and mass actions, have been under attack for decades. Recent Supreme Court cases have further weakened class actions, and the current Congress is considering numerous aggregate litigation and tort reform efforts. Recently, defendants in aggregate litigation have employed an additional tactic by filing civil RICO cases against plaintiffs’ counsel alleging they fraudulently concealed a few baseless lawsuits among larger sets of claims. The predicate acts in those RICO cases consist solely of litigation filings: the filing of complaints and related litigation documents in aggregate litigation. Members of the defense bar have made no secret of the fact that these RICO cases are part of a larger strategy to prevent plaintiffs’ attorneys from bringing large-scale litigation. Despite the rich literature on aggregate litigation, there is little scholarship exploring this recent aggressive use of RICO by the defense bar and corporate interest groups to punish plaintiffs’ attorneys for the alleged fraudulent filing of aggregate litigation.

This Article pulls together several previously unassociated areas of law—including RICO, Rule 11, complex litigation, SLAPP motions, and asbestos litigation—to develop a model for defendants’ use of RICO as a tool of reprisal. It argues that holding plaintiffs’ attorneys liable under civil RICO solely for litigation activities is illegal, results in the lamentable federalization of state common law, and leads to improper forum shopping. The RICO reprisal also avoids legitimate state protections for litigation activity and is a thinly veiled attempt by the defense bar to further weaken aggregate litigation by targeting the plaintiffs’ attorneys themselves. This use of RICO punishes the aggregate litigation device itself, rather than the underlying fraudulent conduct; as a remedy for frivolous aggregate litigation conduct, it is both over- and under-inclusive. The Article concludes by proposing several alternatives, including effectively barring any civil RICO action targeting attorneys’ pure litigation activities without a showing of malicious intent—a proposal that draws on existing common law litigation privilege doctrine.

Michael Sant'Ambrogio and Adam Zimmerman have posted on SSRN a draft of their article, Inside the Agency Class Action, which will be published in the Yale Law Journal. Here’s the abstract:

Federal agencies in the United States hear almost twice as many cases each year as all the federal courts. But agencies routinely avoid using tools that courts rely on to efficiently resolve large groups of claims: class actions and other complex litigation procedures. As a result, across the administrative state, the number of claims languishing on agency dockets has produced crippling backlogs, arbitrary outcomes and new barriers to justice.

A handful of federal administrative programs, however, have quietly bucked this trend. The Equal Employment Opportunity Commission has created an administrative class action procedure, modeled after Rule 23 of the Federal Rules of Civil Procedure, to resolve “pattern and practice” claims of discrimination by federal employees before administrative judges. Similarly, the National Vaccine Injury Compensation Program has used “Omnibus Proceedings” resembling federal multidistrict litigation to pool common claims regarding vaccine injuries. And facing a backlog of hundreds of thousands of claims, the Office of Medicare Hearings and Appeals recently instituted a new “Statistical Sampling Initiative,” which will resolve hundreds of common medical claims at a time by statistically extrapolating the results of a few hearing outcomes.

This Article is the first to map agencies’ nascent efforts to use class actions and other complex procedures in their own hearings. Relying on unusual access to many agencies—including agency policymakers, staff and adjudicators—we take a unique look “inside” administrative tribunals that use mass adjudication in areas as diverse as employment discrimination, mass torts, and health care. In so doing, we unearth broader lessons about what aggregation procedures mean for policymaking, enforcement and adjudication. Even as some fear that collective procedures may stretch the limits of adjudication, our study supports a very different conclusion: group procedures can form an integral part of public regulation and the adjudicatory process itself.

A person who has sought and failed to obtain disability benefits from the Social Security Administration (“the agency”) can appeal the agency’s decision to a federal district court. In 2015, nearly 20,000 such appeals were filed, comprising a significant part of the federal courts’ civil docket. Even though claims pass through multiple layers of internal agency review, many of them return from the federal courts for even more adjudication. Also, a claimant’s experience in the federal courts differs considerably from district to district around the country. District judges in Brooklyn decide these cases pursuant to one set of procedural rules and have in recent years remanded about seventy percent to the agency. Magistrate judges in Little Rock handle this docket with a different set of rules and have in recent years remanded only twenty percent.

The adjudication of disability claims within the agency has received relentless attention from Congress, government inspectors general, academic commentators, and others. Social security litigation in the federal courts has not weathered the same scrutiny. This report, prepared for the Administrative Conference of the United States, fills this gap. It provides a comprehensive qualitative and quantitative empirical study of social security disability benefits litigation.

Our report makes four contributions. The first is a thorough introduction to the process by which a disability benefits claim proceeds from initial filing to a federal judge’s chambers. This description is intended to deepen understandings of where many of federal civil cases come from, and why they raise the same sorts of concerns repeatedly.

Second, the report provides some context for understanding why the federal courts remand claims to the agency at the rate that they do. We argue that the federal courts and the agency have different institutional goals, commitments, and resources. These differences would cause a sizable number of remands even if the agency adjudicated claims successfully and the federal courts applied the appropriate standard of review. Third, we undertake extensive statistical analysis to try to understand what factors explain the sharp variation in district-level remand rates. Circuit boundaries account for some, but not all, of this disparity. After excluding a number of other potential causes, we hypothesize that district courts remand claims to the agency at different rates in part because uneven adjudication within the agency produces pools of appeals of differing quality. Finally, the report analyzes contrasting procedural rules used by different districts to govern social security litigation. We argue that these differences are unnecessary and create needless inefficiencies. We conclude with a set of recommendations to improve social security litigation within the federal courts.

Despite what Priest-Klein theory predicts, in earlier research on federal civil cases, Eisenberg found an association between plaintiff success in pretrial motions and at trial. Our extension of Eisenberg's analysis 20 years later into the state court context, however, does not uncover any statistically significant association between a plaintiff's success at trial and preserving that trial victory on appeal. Our results imply that a plaintiff's decision to pursue litigation to a trial court conclusion is analytically distinct from the plaintiff's decision to defend an appeal of its trial court win brought by a disgruntled defendant. We consider various factors that likely account for the observed differences that distinguish our results from Eisenberg's. First, legal cases that persist to an appellate outcome are a filtered subset of underlying trials and legal disputes and various selection effects inform much of this case filtering. Second, where Eisenberg analyzed the relation between pretrial motions and trial outcomes in federal courts, we assess possible relations between trial and appellate court outcomes in state courts. The pretrial and trial context and the trial and appeals context likely differ in ways that disturb plaintiff success. Third, while Eisenberg studied federal cases between 1978–1985 we study state cases between 2001–2009. In addition to differences between federal and state civil cases, the composition of cases that selected into formal litigation may have evolved over time.

This study documents gender disparities in litigation-cost rulings in Israel. It expands on the existing literature on judicial bias in at least two important ways: by controlling for the merits of the cases and by focusing on civil litigation. The first improvement is methodological. The unique Israeli regime of litigation costs allows us to control for the merit of the cases, as well as for other typically unobservable variables, and thus to isolate and observe judicial bias. The second improvement on the existing literature on judicial bias involves focusing on outcome disparities in the civil (rather than criminal) justice system. Although numerous studies explore gender-based disparities in the criminal justice sphere, only a very small number of studies explore such disparities in the civil arena. We found clear disparities in the allocation of litigation costs between men and women. Male plaintiffs who lost were ordered to pay the winners' legal fees more often than were losing women as sole plaintiffs or as part of all-women plaintiff groups. Likewise, the fees women plaintiffs who lost a case were obliged to pay were less than those required of losing men, and women defendants who won cases received higher fee awards than similarly situated men.

We claim that the proper method of interpreting the Federal Rules of Civil Procedure — civil rules interpretive theory — should be recognized as a distinct field of scholarly inquiry and judicial practice. Fundamentally, the Rules are not statutes. Yet the theories of statutory interpretation that are typically imported into Rules cases by the courts rely upon a principle of legislative supremacy that is inapplicable in this context. That said, we recognize the Rules as authoritative law that is generally amenable to a form of jurisprudential purposivism. Working from this newly elucidated normative foundation, we reject the Rules-as-statutes interpretive approach so often forwarded by the Supreme Court. We turn next to the two alternative interpretive approaches to the Rules in the nascent scholarly literature. We reject the inherent authority model, which views the Court as an unconstrained policymaker in Rules cases, as failing to respect rule-of-law values. We also decline to adopt the regime-specific purposive model because it fails to recognize that the Court faces a question of policymaking form in Rules cases and disregards the institutional advantages provided by the court rulemaking process. Rather, we advocate for an administrative-law model of Rules interpretation that respects the rule of law and promotes the institutional advantages appertaining to purposive textual interpretation by the high court, Advisory Committee policy setting, and lower court application of discretion.

Richard Briles Moriarty, Assistant Attorney General, State of Wisconsin, has published in the American Journal of Trial Advocacy, 39 Am. J. Trial Advoc. 227 (2015) (available on Westlaw), his article, And Now for Something Completely Different: Are the Federal Civil Discovery Rules Moving Forward into A New Age or Shifting Backward into A "Dark" Age?

Abstract:

This Article examines the 2015 Amendments to the Federal Rules of Civil Procedure. The author explains the purposes behind the Rules historically, identifies major changes made in 2015, and analyzes why the 2015 Rule changes are fundamentally unacceptable. The author concludes by discussing the troublesome committee appointment process that underlies the 2015 changes and proposing an appointment process consistent with the check-and-balance views of the Founders, which, among other benefits, could ultimately restore fair and useful discovery rules to the civil litigation system.

Professor Suja Thomas (Illinois) has just published her book, The Missing American Jury (Cambridge U. Press). Here is a summary of the book:

Criminal, civil, and grand juries have disappeared from the American legal system. Over time, despite their significant presence in the Constitution, juries have been robbed of their power by the federal government and the states. For example, leveraging harsher criminal penalties, executive officials have forced criminal defendants into plea bargains, eliminating juries. Capping money damages, legislatures have stripped juries of their power to fix damages. Ordering summary judgment, judges dispose of civil cases without sending them to a jury. This is not what the Founders intended. Examining the Constitution's text and historical sources, the book explores how the jury's authority has been taken and how it can be restored to its rightful co-equal position as a "branch" of government. Discussing the value of the jury beyond the Constitution's requirements, the book also discusses the significance of juries world-wide andargues jury decision-making should be preferred over determinations by other governmental bodies.

For almost two hundred years, a basic tenet of American law has been that federal courts must generally exercise jurisdiction when they possess it. And yet, self-imposed “prudential” limits on judicial power have, at least until recently, roared on despite these pronouncements. The judicial branch’s avowedly self-invented doctrines include some (though not all) aspects of standing, ripeness, abstention, and the political question doctrine.

The Supreme Court recently, and unanimously, concluded that prudential limits are in severe tension with our system of representative democracy because they invite policy determinations from unelected judges. Even with these pronouncements, however, the Court has not eliminated any of these limits. Instead, the Court has recategorized some of these rules as questions of statutory or constitutional interpretation. This raises an important question: When the Court converts prudential limits into constitutional or statutory rules, do these conversions facilitate democracy?

This Article argues that it is unlikely that recategorizing prudential rules will do much to facilitate representative democracy. Worse, constitutionalizing prudential limits reduces dialogue among the branches, and exacerbates some of the most troubling aspects of countermajoritarian judicial supremacy. Further, constitutionalizing judicial prudence has and will make it more difficult for Congress to expand access to American courts for violations of federal rights and norms. When measured against newly constitutionalized limits on judicial power, American democracy is better served by self-imposed judicial restraint, guided by transparency and principle.